The Honorable Louis Caldera
Secretary of the Army
101 Army Pentagon
Washington, D.C. 20310-0101

Dear Mr. Caldera,

This letter provides the Department of Interior's (DOI)
final determination and resolution of the issues delegated to DOI by
the Department of the Army (DOA) in a March 1998 interagency agreement.
In this agreement, DOI agreed to make the following two determinations
related to the set of human skeletal remains recovered on July 26, 1996,
from Columbia Park, land controlled by the U.S. Army Corps of Engineers
(COE), near the city of Kennewick, Benton County, Washington: 1) whether
these human remains meet the definition for "Native American" within
the meaning of the Native American Graves Protection and Repatriation
Act (NAGPRA); and, if so, 2) the appropriate disposition of the remains
under the terms of the statute and its implementing regulations at 43
C.F.R. Part 10.

In January 2000, DOI released its finding that the remains
are considered Native American under the statute and regulations. The
attached "Memorandum to the Assistant Secretary, Fish Wildlife and Parks"
provides the background for this decision. (See Enclosure
1) The Native American determination was based upon chronological
information supplied by the radiocarbon analysis of bone samples and
previously conducted scientific examinations.

The initial determination that the remains were Native
American triggered the application of NAGPRA and the second inquiry
regarding appropriate disposition. The disposition of Native American
human remains is directed by Section 3 of NAGPRA and its implementing
regulations. Section 3 establishes that the Federal government does
not have the right of possession to or ownership of Native American
human remains and other cultural items recovered from Federal or tribal
lands after November 16, 1990. Instead, the statute is designed generally
to promote the transfer of such remains and cultural items to the custody
of lineal descendants, Indian tribes, or Native Hawaiian organizations.
To that end, the statute establishes the following priority for such
remains and cultural items that are excavated or removed from Federal
or tribal lands after November 16, 1990:

in the case of Native American human remains and
associated funerary objects, in the lineal descendants of the Native
American; or

in any case in which such lineal descendants cannot
be ascertained, and in the case of unassociated funerary objects,
sacred objects, and objects of cultural patrimony

in the Indian tribe or Native Hawaiian
organization on whose tribal land such objects or remains were
discovered;

in the Indian tribe or Native Hawaiian organization
which has the closest cultural affiliation with such remains or
objects and which, upon notice, states a claim for such remains
or objects; or

if the cultural affiliation of the objects cannot
be reasonably ascertained and if the objects were discovered on
Federal land that is recognized by a final judgment of the Indian
Claims Commission or the United States Court of Claims as the
aboriginal land of some Indian tribe -

in the Indian tribe that is recognized as
aboriginally occupying the area in which the objects were
discovered, if upon notice, such tribe states a claim for
such remains or objects, or

if it can be shown by a preponderance of
the evidence that a different tribe has a stronger cultural
relationship with the remains or objects than the tribe or
organization specified in paragraph (1), in the Indian tribe
that has the strongest demonstrated relationship, if upon
notice, such tribe states a claim for such remains or objects.
(25 U.S.C. 3002 (a)).

If found to fall under one of the hierarchical priorities
enumerated at 25 U.S.C. 3002 (a) and at 43 C.F.R. 10.6 (a), the Native
American human remains and cultural items are disposed of to the appropriate
entity that claims their custody. If, however, it is determined that
human remains or cultural items do not fit any of these categories,
and, therefore, cannot be validly claimed, they are considered unclaimed
for purposes of NAGPRA (25 U.S.C. 3002(b)).

The Report of the House Committee on NAGPRA described
the statute's purpose as "to protect Native American burial sites and
the removal of human remains, funerary objects, sacred objects, and
objects of cultural patrimony on Federal, Indian and Native Hawaiian
lands." (H.R. Rep. 101-877 p. 8.) Section 12 of NAGPRA recognizes the
unique legal relationship between the United States and Indian tribes.
Given its purpose and this recognition, DOI construes the statute as
Indian legislation. Therefore, any ambiguities in the language of the
statute must be resolved liberally in favor of Indian interests.

The Kennewick human remains were removed from Federal
land, under the control of COE, after November 16, 1990. Therefore,
Section 3 of NAGPRA and its implementing regulations at 43 C.F.R. 10.3-10.7
control the decisions addressing the scientific examination, determination
of custody, and disposition of these remains. Other Federal law is also
applicable under certain circumstances. For example, under Section 3
of NAGPRA and its implementing regulations at 43 C.F.R. 10.3-10.4, the
Archaeological Resources Protection Act (ARPA) is invoked to ensure
appropriate recovery, description, analysis, and documentation of human
remains and other cultural items excavated or removed from Federal lands.

DOI gathered and considered an extensive array of information
to reach the decision regarding the disposition of the Kennewick human
remains. Representatives of DOI consulted, in accordance with the requirements
of the Act and its implementing regulations (43 C.F.R. 10.5), with representatives
and religious leaders of the Confederated Tribes of the Colville Reservation,
Confederated Tribes of the Umatilla Reservation, Confederated Tribes
and Bands of the Yakama Indian Nation of the Yakama Reservation, the
Nez Perce Tribe of Idaho, and the Wanapum Band, a non Federally recognized
Indian group. All five Indian tribes have submitted a joint claim under
NAGPRA for custody of the Kennewick human remains.

Additionally, data and observations supplied by DOI-sponsored
investigations (Enclosure 2),
reports submitted by the claimant Indian tribes and other relevant sources
were collectively used to determine the disposition status of these
remains. Many of the information sources are listed in the reference
section of the cultural affiliation document (Enclosure
3).

Following the order of priority for custody set out
in the statute, DOI first determined that a claim brought for the custody
of the Kennewick human remains based upon lineal descent, under 25 U.S.C.
3002 (a)(1), cannot be validated. According to NAGPRA, lineal descendant
"means an individual tracing his or her ancestry directly and without
interruption by means of the traditional kinship system of the appropriate
Indian tribe or Native Hawaiian organization or by the common law system
of descendance to a known Native American individual whose remains,
funerary objects, or sacred objects are being claimed under these regulations"
(43 C.F.R. 10.2 (b)(1)). Given the very ancient date for the Kennewick
remains (9500-8500 years ago), we found that no present-day lineal descendants,
as defined by NAGPRA at 43 C.F.R. 10.2 (b)(1), exist.

The Department further determined that a claim brought
for the custody of the Kennewick human remains based upon its excavation
or removal from tribal lands, under 25 U.S.C. 3002(a)(2)(A), cannot
be validated. Under NAGPRA, tribal lands "means all lands which: (i)
Are within the exterior boundaries of any Indian reservation including,
but not limited to, allotments held in trust or subject to a restriction
on alienation by the United States; or (ii) Comprise dependent Indian
communities as recognized pursuant to 18 U.S.C. 1151..." (43 C.F.R.
10.2 (f)(2)). The Kennewick human remains were discovered on and removed
from Federal lands administered by COE.

The Department next analyzed whether a claim could be
validated based on cultural affiliation as required by 25 U.S.C. 3002(a)(2)(B)
(see Enclosure 3). DOI reviewed
geographical, kinship, biological, archeological, anthropological, linguistic,
folklore, oral tradition, historical, and other relevant information
and expert opinion evidence to make this determination. All lines of
evidence were deemed equally important and all were accorded equivalent
weight. The determination of cultural affiliation requires evaluation
of evidence from as many credible, reliable, and relevant sources of
information as available. The standard of proof under NAGPRA is the
"preponderance of the evidence." This is a threshold that many scholars
hesitate to use for interpretations based upon archeological, anthropological,
and historical evidence. The determination to be made here is informed
by, but not controlled by, the evidence as a scholar would weigh it.
Instead, the determination is for the Secretary of the Interior to make
as the one that, on the evidence, would best carry out the purpose of
NAGPRA as enacted by Congress.

While many sources of evidence may be considered, the
statute and regulations do not specifically answer whether cultural
affiliation with a single identifiable tribe is required, or whether
such affiliation may be established with a group of modern-day Indian
tribes filing a joint claim. Section 3002(a)(2)(B) speaks of an Indian
tribe with the "closest cultural affiliation," which suggests a congressional
recognition that more than one, and perhaps, many, tribes may have a
cultural affiliation with remains discovered on federal land. We believe
the statute permits finding cultural affiliation with one or more of
multiple tribes where, as here, they submit a joint claim.

In examining the issue of cultural affiliation for this
very ancient set of Native American human remains, DOI considered the
purpose of the statute, the general emphasis of NAGPRA's Section 3 on
returning Native American remains and cultural items to Indian tribes,
and the guidance set forth in the regulations at 43 CFR 10.14. While
some gaps regarding continuity are present, DOI finds that, in this
specific case, the geographic and oral tradition evidence establishes
a reasonable link between these remains and the present-day Indian tribe
claimants.

Cultural affiliation is defined as "a relationship of
shared group identity that may be reasonably traced historically or
prehistorically between a present-day Indian tribe or Native Hawaiian
organization and an identifiably earlier group." 43 C.F.R. 10.14(c)).
Consequently, cultural affiliation exists when there is (1) an identifiable
present-day Indian tribe or Native Hawaiian organization with standing
under NAGPRA and its implementing regulations, (2) evidence of the existence
of an identifiable earlier group, and (3) evidence of a shared group
identity that can be reasonably traced between the present-day Indian
tribe or Native Hawaiian organization and the earlier group.

Four of the five Indian groups who have submitted a
joint claim for the Kennewick remains constitute identifiable present-day
Indian tribes with standing under NAGPRA and its implementing regulations1.
The attached report includes evidence of the cultural characteristics
of the group that lived in the Columbia Plateau region during the lifetime
of the Kennewick Man and evidence of a shared group identity that can
be reasonably traced between the present-day Indian tribe claimants
and the cultural group that existed in the Columbia Plateau region during
the life time of the Kennewick Man.

Radiocarbon and other scientific information indicate
that the Kennewick Man lived approximately 8500 to 9500 years ago. The
modern-day claimant tribes are known to have been living in the Columbia
Plateau region where the Kennewick remains were discovered at the time
of the Lewis and Clark expedition in the early 1800s. Cultural and historical
evidence firmly links the modern-day claimant tribes to the cultural
pattern often referred to as the "Plateau culture" that existed in the
Columbia Plateau region 2000-3000 years ago. Consequently, the cultural
affiliation determination must focus on whether there is evidence establishing
a reasonable cultural connection between the Indian tribes inhabiting
the Columbia Plateau approximately 2000-3000 years ago and the cultural
group, represented by the Kennewick human remains, which inhabited the
same region 8500-9500 years ago.

The collected oral tradition evidence suggests a continuity
between the cultural group represented by the Kennewick human remains
and the modern-day claimant Indian tribes. The oral tradition evidence
reveals that the claimant Indian tribes possess similar traditional
histories that relate to the Columbia Plateau's past landscape. The
oral tradition evidence also lacks any reference to a migration of people
into or out of the Columbia Plateau.

Some of the evidence was too limited to draw any conclusions
on the cultural relationship between the two groups. For example, there
is very little evidence of burial patterns during the 9500-8500 period
and significant temporal gaps exist in the mortuary record for other
periods. Similarly, the linguistic analysis was unable to provide reliable
evidence for the 8500-9500 period but suggests that the antecedents
of the historic language may have been spoken on the Columbia Plateau
4000 years ago. The fact that the morphological characteristics of the
remains differ from modern day Indian tribes may indicate a cultural
discontinuity between the two groups, or may indicate that the cultural
group associated with the Kennewick Man may have subsequently intermixed
with other groups migrating into or through the region, leading to changes
in the morphological characteristics of the group.

Cultural discontinuities are suggested by evidence that
the cultural group existing 8500-9500 years ago was likely small in
size and highly mobile while the Plateau culture consisted or larger,
more sedentary groups. The evidence also suggests that there may have
been differences in procurement and exchange of raw materials or specialized
objects between the two time periods. New artifact types appear, such
as the replacement of edge ground cobbles used in 8500-9500 with the
mortars and pestles associated with the Plateau culture, and new materials
are utilized.

The available information provides evidence of both
cultural continuities and cultural discontinuities between the modern
day claimant tribes and the cultural group that existed during the lifetime
of the Kennewick Man. The cultural discontinuities are due, in part,
to a lack of available data from the earlier time periods. Notably,
none of the cultural discontinuities suggested by the evidence are inconsistent
with a cultural group continuously existing in the region, interacting
with other groups migrating through the area and adapting to changing
climatic conditions.

After considering and weighing the totality of the circumstances
and evidence, DOI has determined that the evidence of cultural continuity
is sufficient to show by a preponderance of the evidence that the Kennewick
remains are culturally affiliated with the present-day Indian tribe
claimants.

DOI has further determined that a claim based on aboriginal
occupation, 25 USC 3002(a)(2)(C)(1), is also a basis for the disposition
of the Kennewick remains to the claimant Indian tribes in this case.
The final judgments of the Indian Claims Commission (ICC) and the United
States Court of Claims that encompass the Kennewick remains' recovery
site and other judicially established Indian land areas have been extensively
reviewed. For reasons explained in Enclosure
4, disposition under § 3002(a)(2)(C)(1) may not be precluded when
an ICC final judgment did not specifically delineate aboriginal territory
due to a voluntary settlement agreement. If the ICC's findings of fact
and opinions entered prior to the compromise settlement clearly identified
an area as being the joint or exclusive aboriginal territory of a tribe,
this evidence is sufficient to establish aboriginal territory for purposes
of § 3002(a)(2)(C)(1).

The Federal land where the Kennewick remains were found
was the subject of several ICC cases brought by the Confederated Tribes
of the Umatilla Reservation, a tribe composed of multiple Indian bands,
in the 1950s and 1960s2. These
cases culminated in a final judgment in accordance with a compromise
settlement. Although the compromise settlement did not delineate the
aboriginal territory of the Umatilla, the ICC had previously determined
in its opinion and findings of fact that several Indian tribes, including
the Umatilla (Walla Walla and Cayuse) and Nez Perce, used and occupied
this area were the Kennewick remains were found. (14 Ind. Cl. Comm.
14, (1964)). Because the Umatilla and Nez Perce, as well as the neighboring
Yakama Tribe and Confederated Tribes of the Colville Reservation, have
jointly filed a claim for custody of the remains under NAGPRA, DOI has
determined that disposition to the claimant tribes is appropriate under
25 USC 3002(a)(2(C)(1).

After reviewing the extensive cultural affiliation examinations
and the history of the Indian Claims Commission findings, DOI has determined
that proper disposition of the Kennewick remains based upon cultural
affiliation and aboriginal occupation is to the claimants, the Confederated
Tribes of the Colville Reservation, Confederated Tribes of the Umatilla
Reservation, Confederated Tribes and Bands of the Yakama Indian Nation
of the Yakama Reservation, the Nez Perce Tribe of Idaho, and the Wanapum
Band.

This determination of disposition to the claimant Indian
tribes under NAGPRA precludes any study of the remains by the public.
Once a disposition decision has been made, NAGPRA does not permit further
study prior to the transfer of the remains to the claimants. The claimants
have been found to be the legal custodians of the remains and study
may only be conducted with their permission.

Prior to any disposition of the Kennewick human remains,
the COE must follow the procedures set forth in 43 CFR 10.6(c). These
procedures include publishing general notices of the proposed disposition
for the required time periods and respecting traditional customs of
the claimant tribes when transferring custody.

Sincerely,
/s/ Bruce Babbitt

Enclosures

cc:
Patrick T. Henry, Assistant Secretary of the Army for Manpower and Reserve
Affairs
Joseph W. Westphal, Assistant Secretary of the Army for Civil Works
Major General Hans A. Van Winkle, Deputy Commander for Civil Works,
U.S. Army Corps of Engineers
Brigadier General Carl A. Strock
Lieutenant Colonel Richard P. Wagenaar

1One of the joint claimants, the Wanapum, is an unrecognized
band that does not have standing to assert an individual claim under
NAGPRA. However, as the other four joint claimants do have standing
under NAGPRA, the fact that the Wanapum lacks standing does not preclude
a disposition to the joint claimants under NAGPRA.2In
a Treaty dated June 9, 1855, and ratified March 8, 1859, (12 Stat. 945),
the Umatilla, Walla Walla, and Cayuse Indians ceded lands, including
the land where the Kennewick remains were found, to the United States
and were formally confederated as the Confederated Tribes of the Umatilla
Reservation.